Recently, the New Yorker published a disturbing article describing how a retired Nevada couple was removed from their home against their will, given medications they likely did not need, denied all of their civil liberties, and had their bank accounts drained. Were they kidnapped? No. They were victims of an unscrupulous professional guardian, who convinced a judge at an initial hearing they did not know about that they were incapacitated, despite questionable supportive evidence, and who the judge then appointed as their legal guardian. Once appointed, the guardian immediately took control of their assets – and their lives. It is a cautionary tale that is well worth reading.
What is a legal guardian? A legal guardian is a person a court appoints to manage either the health care issues (guardianship of the “person”), the financial issues (guardianship of the “estate”), or both, of a person deemed too incapacitated to manage his or her own affairs. A guardianship is supervised by the court and intended to protect the most vulnerable among us who are deemed to be incapable of caring for themselves.
In Washington, courts are granted the power to appoint guardians of the persons and/or estates of incapacitated persons at RCW 11.88.010. The statute states that a person may be deemed incapacitated “when the superior court determines the individual has a significant risk of personal harm based upon a demonstrated inability to adequately provide for nutrition, health, housing, or physical safety” and may be deemed incapacitated as to their estate “when the superior court determines the individual is at significant risk of financial harm based upon a demonstrated inability to adequately manage property or financial affairs.”
Sometimes, guardianship provides necessary protections. But, for many people, a better option is to have a General Durable Power of Attorney. This is a document that appoints someone you know and trust to serve as your attorney-in-fact in the event that you become incapacitated. Even if someone attempts to initiate a court-supervised guardianship proceeding, RCW 11.88.010(4) provides that if a person nominates someone to serve as their guardian in a General Durable Power of Attorney, the court will honor that nomination unless “good cause” is demonstrated for the court to decline to do so.
The guardianship scenarios described in the New Yorker article are frightening and infuriating. It would be nice to imagine that what happened to the people profiled in the article happened because they lived in Nevada, and that Washington would never allow something like that to ever happen here. Perhaps. But, a better way to thwart any potential unscrupulous and unnecessary guardianship for yourself or your loved ones is by working with your estate planning attorney to develop and execute a General Durable Power of Attorney.
Photo credit: Garry Knight on Flickr